Tying the Hands of Your Health Care Agent

10:34 am Consumer Articles, Estate Planning

This office has recommended, and most estate planners will agree, that one should consider appointing a trusted individual to make health care decisions for you in the event you are unable to do so. I wrote a comprehensive article on that topic on October 7, 2007.

Maryland law not only allows one to appoint a Health Care Agent, the statute provides forms one may use to do so. While I have always recommended that one seek experienced legal counsel when appointing a Health Care Agent – one of the statutory forms curiously omits a significant provision – such advice is even more compelling in light of a new ruling by Maryland’s Attorney General.

Maryland’s Health Care Decision Act enables a person both to appoint a Health Care Agent to make Medical Decisions for you in the event you are unable to do so for yourself, and to state your intentions concerning end of life treatment in certain circumstances: if death from a terminal condition is imminent, if you are in a persistent vegetative state or coma, or if you are in an end stage condition as a consequence of a terminal disease.

There are forms in the statute to effectuate both of these purposes, designated Parts A and B of the statutory advance directive form. In the typical circumstance, an individual will complete both forms, even if the individual intends that the determination of his health care agent, whether it be that individual’s spouse, adult child, or other appropriate individual, will prevail notwithstanding the choices made in Part B, the end of life health care instructions.

For example, one may check the boxes on the form requesting that treatment be provided in the three circumstances discussed above, while at the same time relying on her spouse or other chosen agent to make the decision when “enough is enough” and authorize removal of life support. Nobody wants to become the next Terry Schiavo, the woman who lived in a permanent coma for 15 years while a legal battle raged between her husband and her parents over whether or not to remove her feeding tube.

However, according to Maryland’s Attorney General, once you make your choices on Part B of Maryland’s advance directive form, you will be locked in to those choices even if your advance directive explicitly states that your chosen Health Care Agent may override those choices.

Consequently, some respected elder law attorneys not only recommend foregoing implementation of the Health Care Decisions section (Part B) of Maryland’s statutory advance directive, but refuse to assist clients in appointing a Health Care Agent altogether. While both appointing a Health Care Agent and also completing Part B of the Advance Directive may be problematic, refusing to assist with the appointment of a Health Care Agent seems to be a cure worse than the ill.

Instead of such a drastic response, the Gatesman Law Office recommends that you have a frank discussion with your attorney and that you consider all the implications of your future health care choices. We recommend that you employ legal documents that will enable you to achieve your objectives without tying the hands of those you have appointed to assist you.

Now more than ever, it is important that you seek the guidance of knowledgeable legal counsel when deciding whether to employ the health care decision-making forms provided by Maryland’s Health Care Decisions Act.